Note to Litigants: Don’t Use Work Email to Discuss Your Case

Allright, Civil Procedure students, today’s hypothetical: Plaintiff preparing to bring a lawsuit against his employer corresponds with his lawyer through his work email account. Defendant employer discovers the emails after litigation is filed, and forwards the messages to its in-house counsel. May the litigant rely on attorney-client privilege to keep the emails out of evidence?

If you answered no, we can’t say you’re definitively right, but we can say at least that there are a couple of judges out there who agree with you. The latest: New York Judge Charles W. Ramos, who ruled last fall that emails sent by a Beth Israel doctor to his lawyer on Beth Israel’s email server weren’t privileged after they were uncovered by the hospital. (Law Blog Personal Trivia: On a November night many years ago, long before the days of email, the Law Blog was born at Beth Israel hospital.)

Judge Ramos rejected the privilege largely because, he found, the plaintiff didn’t have any real expectation that the messages were private. The hospital had a policy of prohibiting email for personal purposes, and that policy was disclosed to employees.

The Law Blog reads the opinion — and a few of its like-minded precedents — as just more cringe-worthy cautionary tales about using work email for personal purposes (like, oh, say, plans to sue the owner of the email account.) But to Paul Aloe, a lawyer at Kudman Trachten Aloe, Judge Ramos’s decision “raises important issues that need to be addressed.” In the New York Law Journal last month, Aloe outlined his concerns, chiefly that in a situation like this, a waiver applies not only to the employer but to any other defendant as well. In other words, writes Aloe, an email to a divorce lawyer on company email may waive the privilege.

Lawyers, we’re curious: what do you advise your clients to do now? Avoid using work email to discuss personal legal issues?

About Law Blog

The Law Blog covers the legal arena’s hot cases, emerging trends and big personalities. It’s brought to you by lead writer Jacob Gershman with contributions from across The Wall Street Journal’s staff. Jacob comes here after more than half a decade covering the bare-knuckle politics of New York State. His inside-the-room reporting left him steeped in legal and regulatory issues that continue to grab headlines.

A federal judge in Manhattan rejected a bid by the conservative advocacy group Citizens United to stop New York Attorney General Eric Schneiderman from requiring that charities disclose to him their major donors.

Concerns about a gender gap in the legal profession tend to focus on issues like pay, billing rates and who makes partner. A new study by the American Bar Association looks inside the federal courtroom to see who's trying cases.